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MENS REA: THE NEED FOR 

A MEANINGFUL INTENT REQUIREMENT IN 

FEDERAL CRIMINAL LAW 

HEARING 

BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2013 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 19, 2013 

Serial No. 113–46 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

OVER-CRIMINALIZATION TASK FORCE OF 2013 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

SPENCER BACHUS, Alabama 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JERROLD NADLER, New York 

STEVE COHEN, Tennessee 

KAREN BASS, California 

HAKEEM JEFFRIES, New York 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 
(III) 

C O N T E N T S 

JULY 19, 2013 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Over-Criminalization Task 

Force of 2013 ........................................................................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Over-Criminalization Task 

Force of 2013 ........................................................................................................ 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown Law School, Visiting Fellow, Oriel College, University of Oxford, Professor Emeritus, LSU 

Law School 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 11 

Norman L. Reimer, Executive Director, National Association of Criminal Defense Lawyers 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 26 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 4 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 6 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, OverCriminalization Task Force of 2013 ................................................................... 6 

Material submittted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, OverCriminalization Task Force of 2013 ................................................................... 55 

(1) 

MENS REA: THE NEED FOR A MEANINGFUL 

INTENT REQUIREMENT IN FEDERAL CRIMINAL LAW 

FRIDAY, JULY 19, 2013 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2013 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9 a.m., in room 2237, 

Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Task Force) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Bachus, 

Gohmert, Labrador, Holding, Scott, Conyers, Nadler, and Jeffries. 

Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 

Church, Clerk; and (Minority) Ron LeGrand, Counsel. 

Mr. SENSENBRENNER. The Task Force will come to order. 

Today I would like to thank our witnesses for agreeing to appear 

at this hearing, which is the second in a series of hearings on the 

growing problem of over-criminalization and over-federalization. 

This Task Force held its introductory hearing on the scope of the 

over-criminalization problem a month ago, at which time we heard 

from a panel of excellent witnesses. Today our work continues. 

As the title indicates, today’s hearing will focus on the need for 

a meaningful intent requirement in Federal criminal law. A common criticism of the expansion of Federal criminal law is that it 

has included an erosion of the mens rea requirement. Mens rea, 

Latin for guilty mind, is the state of mind the government, to secure a conviction, must prove that a defendant had when committing a crime. 

As Justice Jackson explained some 60 years ago, ‘‘The contention 

that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human 

will and a consequent ability and duty of the normal individual to 

choose between good and evil.’’ 

Historically, most common law criminal offenses were malum in 

se offenses, meaning inherently immoral, antisocial acts such as 

murder, arson, or rape. However, the expansion of the Federal 

Criminal Code has been accompanied by an ever-increasing labyrinth of Federal regulations, many of which are malum 
2 

prohibitum offenses; that is offenses that are crimes merely because Congress has decided to pass a law saying so. 

Many of these offenses have no guilty mind requirement, which 

means that American citizens can be convicted of crimes, and 

sometimes serve jail time, for unwittingly committing crimes such 

as failing to file paperwork or fishing without a license, vague definition in these mala prohibita laws ensure that those who did not 

intend to break the law and who believe in good faith that their 

conduct was lawful. This is an unacceptable state of affairs, and 

surely not what Congress nor America’s common law system intended. 

To complicate matters, many of the terms commonly used in the 

Federal Code to denote intent lack clear definitions. For example, 

the Supreme Court has opined that, ‘‘willfully,’’ is an ambiguous 

term which can have different meanings in different contexts. 

Judge Learned Hand excoriated the term willful. ‘‘It is an awful 

word. It is one of the most troublesome words in a statute that I 

know. If I were to have to have an index purge, willful would lead 

all the rest in spite of its being at the end of the alphabet.’’ I do 

not think we are going to do that in this Task Force, but with 

Google searches and things like that it is easier than it was when 

Judge Hand wrote that opinion. 

In this session of Congress, I have reintroduced legislation to 

modernize and streamline the Federal Criminal Code. That legislation would bring uniformity to the code by using the term ‘‘knowingly’’ to define the requisite intent for every crime except for those 

criminal offenses that require some additional and more specific intent. 

In 2010, the Heritage Foundation and the National Association 

of Criminal Defense Lawyers, definitely an odd couple, published a 

report entitled ‘‘Without Intent: How Congress is Eroding the 

Criminal Intent Requirement in Federal Law.’’ This report was the 

result of a study of legislation containing criminal offenses introduced in the 109th Congress, which found that over 50 percent of 

the offenses considered by that Congress contained inadequate 

mens rea requirements. This is a shockingly high number. 

The study found that despite the House and Senate Judiciary 

Committees’ expertise and subject matter jurisdiction over Federal 

criminal law, over half of the offenses noted in the study were not 

referred to either Committee. However, the study also found that 

when the bills were considered and marked up by the two Judiciary Committees, the quality of mens rea requirements was significantly improved. We thank them for that. 

It is clear going forward that congressional leadership could ensure that the Judiciary Committees receive referrals on any legislation containing criminal penalties. Inadequate drafting by other 

Congressional Committees should not lead to prison time for American citizens. The lack of an adequate intent requirement in the 

Federal Code is one of the most pressing problems facing this Task 

Force, and I look forward to engaging in a substantive discussion 

with our distinguished panel of witnesses today. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of the Task Force, the gentleman from Virginia, 

Mr. Scott. 
3 

Mr. SCOTT. Thank you, Mr. Chairman. 

For centuries the American legal system has defined a crime to 

require both a guilty act and a guilty mind. The latter is commonly 

referred to as criminal intent. To win a conviction, the government 

must prove beyond a reasonable doubt that the accused committed 

the prohibited act with criminal intent. 

For the past several years, a number of groups from diverse political philosophies have come together to express their concern 

over the lack of specificity in criminal law standard of proof for 

holding a person accountable for criminal conduct. They have complained of vagueness in the standard, with many defendants not 

knowing whether or not they are even guilty of a crime because of 

the absence of the common law requirement of the guilty mind of 

mens rea. The mens rea requirement has long served as an important role 

in protecting those who did not intend to commit a wrongful act 

from prosecution or conviction. Mens rea elements, such as specific 

intent, willful intent, or knowledge of the specific facts constituting 

the offense, were part of nearly all common law crimes. They have 

served as a means of protecting individuals from state action to deprive them of liberty and rights. Without these protective elements 

in our criminal laws, honest citizens are at risk of being victimized 

and criminalized by poorly crafted legislation and overzealous prosecutors. 

For centuries, citizens in this country have only faced a few 

dozen Federal criminal offenses, but in recent years the number of 

crimes has exploded. Thousands of Federal crimes are now covered 

not only in Federal jurisdictions, but also are covered by duplicative areas where state and local crimes also cover Federal crimes. 

It is estimated that there are also, in addition to that, hundreds 

of thousands of additional crimes imposed by regulatory action. 

As we have seen from testimony from the Crime Subcommittee 

previously, and this Task Force specifically, many provisions lack 

criminal intent requirements to protect accused persons from unjust criminal punishment, such as those imposed on persons who 

may violate a regulation that they did not even know was a crime. 

To inspire the widest possible trust and confidence, we should ensure that all criminal provisions provided for traditional protections 

against unjust punishment by ensuring each person convicted has 

the specific mens rea requirement. 

One of the areas that we need to specifically look at are some of 

the regulations and whether or not some of those regulations ought 

to carry criminal penalties at all. There are some that I think need 

to cover criminal penalties, but we will discuss those as the Committee goes forward. I look forward to listening to the witnesses 

and hear their views on this issue. And thank you, and yield back 

the balance of my time. 

Mr. SENSENBRENNER. The Chair recognizes the Ranking Member 

of the full Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I think this is an important Task Force. And I would merely add 

that a fundamental principle of our criminal justice system is that 

an individual should not be subjected to prosecution and conviction 

unless he or she intentionally engages in wrongful conduct or con-
4 

duct that they knew was unlawful. And so for the hearing on mens 

rea, the need for a meaningful intent requirement in Federal criminal law is an important issue before the Over-Criminalization Task 

Force. Only under these circumstances should an individual be deserving of punishment. 

Unfortunately, here in the Congress we have increasingly 

strayed from the basic principle, as evidenced by the fact that Federal criminal law is no longer limited to crimes that are readily recognizable. So as the Task Force undertakes its analysis of this 

issue, there are several matters we should address. 

To begin with, the lack of mens rea standard presents a real risk 

that truly innocent individuals may be wrongly convicted and punished. The omission of mens rea essentially sets citizens up to be, 

in effect, ambushed. No one should be at risk of prosecution, conviction, and possible imprisonment for engaging in actions that are 

not inherently blameworthy unless he or she knew that the act involved was illegal. An individual can be found criminally liable for 

violating certain commercial, regulatory, and environmental laws 

without any proof that they intended to violate these laws or that 

their conduct was clearly blameworthy. In fact, without an articulated mens rea standard, it may not even be clear that the crime 

has even been committed. 

Now, the Heritage Foundation study conducted by our witness 

who is testifying today estimated that 17 of the 91 Federal criminal 

offenses enacted between 2000 and 2007 lacked any mens rea requirement at all. A joint report by the National Association of 

Criminal Defense Lawyers and the Heritage Foundation examined 

the Federal criminal law process during the 109th Congress. The 

study revealed that over 57 percent of the offenses introduced, and 

64 percent of those enacted into law, contained inadequate criminal 

intent requirements, putting the innocent at risk of criminal prosecution. As a result, everyone in the criminal justice system, including the defendant, prosecutor, and judge, is left wondering 

what mental state, if any, applies. 

For those inclined to place their trust in prosecutorial responsibility and discretion, I say that the responsibility lies with us, the 

Congress, to pass legislation that is fair, unambiguous, and protects the rights of all. That is why this Task Force is so important. 

I will put the rest of my statement in the record. 

Mr. SENSENBRENNER. Without objection. 

Mr. CONYERS. Yield back the balance of my time. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

A fundamental principle of our criminal justice system is that an individual 

should not be subjected to prosecution and conviction unless he or she intentionally 

engages in wrongful conduct or conduct that they knew was unlawful. 

Only under these circumstances should an individual be deserving of punishment. 

Unfortunately, Congress has increasingly strayed from this basic principle as evidenced by the fact that federal criminal law is no longer limited to crimes that are 

readily recognizable. 

So as the Task Force undertakes its analysis of this issue, there are several issues 

that we should address. 

To begin with, the lack of a mens rea standard presents a real risk that truly 

innocent individuals may be wrongfully accused, convicted and punished. 
5 

The omission of mens rea essentially sets citizens up to be ambushed. 

No one should be at risk of prosecution, conviction and imprisonment for engaging 

in actions that are not inherently blameworthy unless he or she knew that the act 

involved was illegal. 

An individual can be found criminally liable for violating certain commercial, regulatory, and environmental laws without any proof that he or she intended to violate these laws or that his or her conduct was clearly blameworthy. 

In fact, without an articulated mens rea standard, it may not even be clear that 

a crime has even been committed. 

According to a Heritage Foundation study conducted by John Baker who is testifying here today, it is estimated that 17 of the 91 federal criminal offenses enacted 

between 2000 and 2007 lacked any mens rea requirement at all. 

A joint report by the National Association of Criminal Defense Lawyers and the 

Heritage Foundation, entitled ‘‘Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law’’, and released in May 2010, examined the 

federal criminal law process during the 109th Congress (2005–2006). 

That study revealed that over 57 percent of the offenses introduced and 64 percent of those enacted into law contained inadequate criminal intent requirements, 

putting the innocent at risk of criminal prosecution. 

As a result of this failing, everyone in the criminal justice system—including the 

defendant, prosecutor, and judge—is left wondering what mental state, if any applies. 

For those inclined to place their trust in prosecutorial responsibility and discretion, I say that the responsibility lies with us—the Congress—to pass legislation 

that is fair, unambiguous and protects the rights of all citizens. 

That is our duty. Congress must require that a conviction be based on proof that 

a person purposefully intended to break the law. 

To leave it to the prosecutors and courts to determine Congress’ intent is a dereliction of our sworn duty. 

Another concern that I have pertains to how we define what constitutes ‘‘mens 

rea.’’ 

While we all can agree that the knowledge or mens rea element of a criminal law 

statute is critical, there continues to be debate about the difference between the 

terms ‘‘willfully’’, and ‘‘intentionally’’ or ‘‘knowingly.’’ 

‘‘Willful’’ is often used to describe a state of mind where the person consciously 

and purposefully breaks the law or violates widely known legal duty. 

Is it negligence, knowledge, criminal intent, or strict liability? 

And, this standard is to be distinguished from the situation where a person violates a criminal law without any purpose of doing so, or he makes a good faith mistake when interpreting a complex area of law. 

So, as we become more scrupulous about requiring mens rea in criminal offenses, 

we must also ensure that the specific mens rea or ‘‘guilty mind’’ elements of federal 

offenses capture only blameworthy conduct. 

Finally, I want the witnesses to address the issue of whether proof of willfulness 

should be required for regulatory crimes. 

Specifically, if the standard for these offenses is not willfulness, what should the 

standard be? 

Would it be more appropriate to impose civil penalties and administrative sanctions for those who violate a regulation but do not meet the requirements from 

criminal conviction? 

Are there certain types of regulatory crimes that should be exempt from a mens 

rea standard? 

What justification exists for imposing criminal liability for regulatory crimes? 

I look forward to hearing the responses to these questions from the witnesses and 

I commend the Task Force for examining the critical issue of mens rea. 

Mr. SENSENBRENNER. The Chairman of the full Committee, Mr. 

Goodlatte, is unable to make it today. I ask unanimous consent 

that his opening statement be placed in the record. 

[The prepared statement of Mr. Goodlatte follows:] 
6 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 

Thank you Chairman Sensenbrenner. I am very happy to be here today at the 

second hearing of the Over-Criminalization Task Force. Today’s hearing will afford 

Task Force members the opportunity to hear from a distinguished panel of outside 

experts who have studied the issue of criminal intent very closely for a number of 

years. 

At our first hearing last month, the witnesses unanimously agreed that the erosion of the mens rea requirement in Federal law is the most pressing issue facing 

this Task Force. 

Anyone who has been to law school knows that, at common law, finding an individual guilty of a crime required the government to show a convergence of harmful 

conduct (the actus reus) with the intent to do something that the law forbids (the 

mens rea, or ‘‘guilty mind’’ requirement). It required, as the Supreme Court has stated, ‘‘concurrence of an evil-meaning mind with an evil-doing hand.’’ 

However, as my colleagues and many commentators have noted, the expansion of 

the federal code—to some 4,500 criminal statutes today, as well as tens of thousands of regulations carrying criminal penalties—has resulted in a code that no average American citizen could be expected to read and understand, let alone conform 

his conduct to. As a result, the news is replete with stories of Americans who have 

been convicted of crimes—and sometimes, sentenced to lengthy prison terms—when 

they had no intent to break the law. 

A primary cause of this predicament is Congress itself. That is, recent Congresses 

have crafted scores of new federal criminal laws that lack adequate criminal intent 

requirements and define the criminalized conduct in unacceptably vague and 

overbroad terms. As noted in the Without Intent study done by the Heritage Foundation and the National Association of Criminal Defense Lawyers, over 57 percent 

of the offenses introduced in the 109th Congress—and 64 percent of those enacted 

into law—contained inadequate intent requirements. 

The good news coming out of this study is that regular order by the House Judiciary Committee—that is, the marking up and reporting out of a bill—does improve 

the quality of mens rea requirements. As Chairman of the Judiciary Committee, it 

should come as no surprise to anyone that I strongly agree with that conclusion. 

I can assure my colleagues that this Committee will continue working to ensure 

that federal criminal laws are responsibly drafted and considered. 

I look forward to hearing from our witnesses today about the need for a definitive 

mens rea requirement in the Federal code, and what steps this Task Force and the 

Judiciary Committee can take to address the issue. 

As I stated at the beginning of our first hearing, concern for this issue is bipartisan, and requires bipartisan perspectives. I commend all of my colleagues here 

today for your excellent work on the Task Force, and I yield back the balance of 

my time. 

Mr. SENSENBRENNER. And I also ask unanimous consent that 

other Members’ opening statements may be placed in the record. 

Without objection, so ordered. 

[The prepared statement of Mr. Scott follows:] 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, 

Over-Criminalization Task Force of 2013 

Good morning, 

For centuries, the Anglo-American legal system has defined a crime to require 

both a guilty act (actus reus) and a guilty mind (mens rea). The latter is commonly 

referred to as a criminal intent requirement. To win a conviction, the government 

must prove beyond a reasonable doubt that the accused committed a prohibited act 

with criminal intent. 

Over the past several years, a number of groups, from diverse political philosophies have come together to express their concern over the lack of specificity in 

criminal law standard of proof for holding a person accountable for criminal conduct. 

They have complained of vagueness in the standard with many defendants not know 

whether or why they were guilty of a crime, all because of the absence of the com-
7 

mon-law requirement of mens rea, or ‘‘guilty mind’’ as a required standard of proof 

to be held accountable for a crime. 

The mens rea requirement has long served an important role in protecting those 

who did not intend to commit wrongful or criminal acts from prosecution and conviction. Mens rea elements such as specific intent, willful intent and the knowledge 

of specific facts constituting the offense were part of nearly all common-law crimes. 

They have served as a means of protecting individuals from state action to deprive 

them of liberty and rights. Without these protective elements in our criminal laws, 

honest citizens are at risk of being victimized and criminalized by poorly crafted legislation and overzealous prosecutors. 

For centuries, citizens in this country faced only a few dozen federal criminal offenses. In recent decades, however, the number of federal criminal offenses has 

grown explosively. Thousands of federal crimes now cover not only uniquely federal 

jurisdictional subject areas, but also subject areas duplicative of crimes under state 

and local jurisdiction. And estimates indicate that there are hundreds of thousands 

of additional criminal provisions imposed through regulatory actions by federal 

agencies implementing federal criminal statutes. 

As we have seen from testimony before the Crime Subcommittee previously, and 

recently before this Task Force, many of these provisions lack clear criminal-intent 

requirements to protect accused persons from unjust criminal punishment, such as 

those imposed upon persons who may violate a law or regulation only accidentally 

or inadvertently, without any criminal intent. To inspire the widest possible trust 

and confidence in the federal criminal justice system, we should ensure that all 

criminal provisions provided for traditional protections against unjust punishment 

by ensuring that each has a specific mens rea requirement. 

I welcome today’s witnesses, and look forward to suggestions as to what provisions, if any, should be added to federal law to protect accused persons from an improper risk of criminal punishment. 

It is my hope that this Task Force, with the assistance of witnesses such as those 

appearing before us today, will identify bipartisan efforts to make the federal criminal code smaller and more understandable. It is also my hope that through this 

process we will give Americans a reasonable opportunity to understand what the 

criminal law requires of them before they act. 

Mr. SENSENBRENNER. Also, without objection the Chair will be 

authorized to declare recesses during the hearing of the Task Force 

today. 

Let me say in the beginning that we are scheduled to have about 

an hour-and-a-half’s worth of votes between 10:20 and a little bit 

before noon. I think it would be incumbent on all of us, particularly 

the witnesses, if we could wrap this up before we have to go across 

the street to vote, because I do not think it would be very fair for 

the witnesses to have to sit around and wait to come back. 

Having said that, let me introduce the witnesses. 

Dr. John S. Baker, Jr., is the visiting professor at Georgetown 

University Law School, a visiting fellow at Oriel College at the 

University of Oxford, emeritus professor of law at the LSU Law 

School. He teaches short courses on separation of powers for the 

Federalist Society with Supreme Court Justice Antonin Scalia. 

Dr. Baker previously worked as a Federal court clerk and assistant district attorney in New Orleans, and has served as consultant 

to the U.S. Department of Justice, U.S. Senate Judiciary Subcommittee on Separation of Powers, the White House Office of 

Planning, USIA and USAID. He was a Fulbright scholar in the 

Philippines and a Fulbright specialist in Chile. 

Dr. Baker served as a law clerk in the Federal District Court and 

as an assistant district attorney in LA before joining LSU in 1975. 

He served on an ABA task force which issued the report ‘‘The Federalization of Crime’’ in 1998. He received his bachelor of arts degree from the University of Dallas, his J.D. Degree from the Uni-
8 

versity of Michigan Law School, and his Ph.D. degree in political 

thought from the University of London. 

Mr. Norman L. Reimer is the executive director of the National 

Association of Criminal Defense Lawyers. As executive director, 

Norman Reimer heads a professional staff based in Washington, 

D.C., serving the NACDL’s district, local, and state and international affiliate organization members. Since joining NACDL, he 

has overseen a significant expansion of the association’s educational programming and policy initiatives. Previously, he practiced law for 28 years, most recently at Gould, Reimer, Walsh, 

Goffin, Cohn, LLP. Mr. Reimer assumed the presidency of the New 

York County Lawyers Association in 2004. 

In addition to that role, he has served as a delegate to both the 

American Bar Association’s House of Delegates and the New York 

State Bar House of Delegates. He formerly served as chair of the 

Central Screening Committee of the Assigned Counsel Plan, Appellate Division, First Department, overseeing the qualification of several hundred attorneys. He served on the Federal Criminal Justice 

Panels for the Southern District of New York, where he was certified to represent criminal defendants in felony prosecutions, capital prosecutions, and habeas corpus proceedings. He was also certified by the New York State Capital Defender to handle death 

penalty prosecutions in the New York State courts. 

So we ask you to limit your oral testimony to 5 minutes. You are 

all familiar with the red, yellow, and green lights before you. Without objection, your full statements will appear in the record. 

And, Dr. Baker, why don’t you go first? 

TESTIMONY OF JOHN S. BAKER, JR., Ph.D., VISITING PROFESSOR, GEORGETOWN LAW SCHOOL, VISITING FELLOW, 

ORIEL COLLEGE, UNIVERSITY OF OXFORD, PROFESSOR 

EMERITUS, LSU LAW SCHOOL 

Mr. BAKER. Mr. Chairman, Mr. Ranking Member, and Members 

of Congress, thank you for holding this hearing. And I especially 

thank you—— 

Mr. SENSENBRENNER. Is your mike on? 

Mr. BAKER. It appears to be. 

Mr. Chairman, Mr. Ranking Member, and Members of Congress, 

thank you for holding this hearing, and thank you in particular for 

the Task Force. The issue of over-federalization is the main issue 

I have worked on for decades, and so it is very gratifying to be here 

and have this opportunity to testify. 

In your first meeting you heard from Mr. John Malcolm. And I 

had planned to say that I was going to pick up where he left off 

with the Morissette case and the quote from Justice Jackson. The 

problem is that Mr. Sensenbrenner covered most of what I was 

going to say, and then Mr. Scott and Mr. Conyers doubled down on 

it. 

So it is wonderful to start knowing that we all agree apparently 

on what the problem is. The difficulty is to figure out a solution. 

And it is not an easy thing to do. And that means understanding 

how we got in the mess in the first place is critical to crafting the 

solution. 
9 

I think it is important not so much for Members of this Committee, but for other Members of Congress to understand the difference between state criminal law and Federal criminal law. But 

first of all, we have identified the strict liability problem of no mens 

rea. But the inadequate mens rea problem, where you have a knowingly requirement that does not really amount to a mens rea issue 

is also critical. 

The important thing, it seems to me, is to understand that mens 

rea is a principle, and that under it come particular rules. And the 

rules vary with the nature and the type of the crime. And when 

we look at state criminal law, it is relatively easy, even though 

states have added many non-common law crimes, it is easy because 

the meat and potatoes of a local prosecutor, which I was, in murder, rape, robbery, theft, burglary, that is what we dealt with. And 

most juries do not have difficulty figuring out what those crimes 

are. Indeed, in most state prosecutions the issue is not whether 

there was a crime, the issue is whether the defendant is the person 

who did it. 

In Federal law it is just the opposite. The issue is not whether 

the defendant did something; it is whether what he did was a 

crime. And we know with 4,500 statutes out there, there are plenty 

to pick from. And it is easy to pick up one that has, if not a lack 

of mens rea entirely, a confused mens rea. And the classic example 

is the mail fraud statute, which the Justice Department constantly 

is litigating and pushing the envelope on. 

So how is it then that you go about dealing with it? Well, first 

of all, in understanding the difference between state and Federal 

criminal law you have to understand, as you do, but other Members of the Congress may not, that we have simple crimes at the 

state level and we have crimes at the Federal level that look more 

like the Tax Code. And as a result, people cannot understand what 

they are. 

And how did we get into this situation? Well, it has to do with 

something called the Constitution. There is no general police 

power, as you know, in the Federal Government. The Supreme 

Court keeps trying to remind the Congress of this. And sometimes 

it gets through and sometimes it does not. But when you have to 

put a jurisdictional element in the statute, that immediately complicates the statute. The statute becomes more and more complex. 

And indeed, when you are dealing, as you are in most cases, with 

the power under the Commerce Clause, that means you put in an 

affecting commerce provision, your powers are limited, supposedly 

limited, and it does not end up looking, in most cases, like a crime. 

It is in most cases really a regulation that happens to carry a 

criminal penalty. 

So what is the solution? Well, in one sense the solution would appear to be easy: a default rule. The Model Penal Code has a default 

rule. The difficulty is default rules in the Model Penal Code—which 

by the way were not adopted necessarily by most of the states that 

adopted the Model Penal Code—the difficulty is the default rule 

works and is crafted relatively easily when you have a coherent 

code. 

What we call the Federal Criminal Code is not a coherent code. 

It is simply a list of statutes. Because these statutes have been 
10 

drafted over time by different sessions of Congress, there is no coherence to these crimes. Therefore, when you attempt to come up 

with a default rule, as the Heritage Foundation has drafted, it is 

a difficult, intricate thing to put together. 

The most important thing I would say in dealing with the default 

rule especially is to give guidance to a Federal court, which, no 

matter what you say, is going to have to interpret it. And if Congress comes down, as the three Members who spoke this morning 

did, very firmly in favor of enforcing a mens rea, that message will 

get across to the Federal courts. With that message, when you 

adopt the particular underlying rules that follow from it, the court 

will understand to err on the side of mens rea rather than erring 

on the side of strict liability. 

And if you look at default rules as they have been interpreted in 

the states under the Model Penal Code, the differences turn on 

whether the particular state supreme court leaned toward mens rea 

or whether it leaned toward strict liability, and that makes all the 

difference in the world. 

You know, at the state level we know that we found many people 

who are innocent in jail because they were factually not guilty. The 

problem in Federal criminal law is that we have innocent people 

being convicted not because we have the wrong person, but because 

they really did not commit a crime. 

Thank you very much. 

[The prepared statement of Mr. Baker follows:] 
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Mr. SENSENBRENNER. Thank you, Dr. Baker. 

Mr. Reimer. 

TESTIMONY OF NORMAN L. REIMER, EXECUTIVE DIRECTOR, 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 

Mr. REIMER. Thank you, Chairman Sensenbrenner and Ranking 

Member Scott and Ranking Member Conyers and Members of the 

Task Force. Thank you for inviting me to address the critically important issue of intent requirements, or the lack thereof, in Federal 

criminal statutes. 

The problem is a core aspect of the larger over-criminalization 

problem. But this is one which is uniquely within the power of 

Congress to fix. 

At the outset, I note that this is one issue on which the most important ingredient for reform is already present; that is, impressive 

bipartisan consensus. The House Judiciary Committee has now 

been looking at over-criminalization for more than 3 years. NACDL 

has been privileged to work with you, specifically on intent problems in three different Congresses, and even with a shift in the 

majority. 

So why is there a growing consensus around this issue? It is because we are looking at a problem that cannot be traced to any political party or philosophy, but rather is a byproduct of a growing 

reliance upon the criminal provisions as a panacea for every perceived problem in society. This problem transcends ideology. It is 

not about right or left, it is about right and wrong. 

In speaking for the criminal defense bar, I am not here solely 

looking at the problem through the eyes of a practitioner, but rather through the eyes of the individual who is accused of a Federal 

crime, the eyes of the people, the people who become our clients, 

the members of our community who have to answer to these laws. 

While a part of this Task Force’s mission is to look at whether we 

have too many criminal laws imposing penalties for far too many 

things that either should not be regulated, or if they are should not 

carry criminal punishment and the life-altering stigma of criminal 

convictions that go with that, that is not what we are here about 

today. Today is not about what you decide to make criminal, it is 

about how something is made criminal. 

Reasonable people can disagree about what should be a crime, 

but not about how to make it a crime. To remain tethered to a 

moral anchor, when the government decides to criminalize, it has 

an obligation to do so with precision and clarity so that the individual, the average person can clearly understand what is illegal. 

That is why the question of how you define a crime is so critical. 

This is a practical concern. When you look at a criminal provision, can you clearly see what is the test for whether it has been 

violated? What notice does the public have of exactly what conduct 

was prohibited? What is the mental state that makes the criminal 

act? And what, if anything, is it that a prosecutor has to prove? If 

these questions cannot be readily answered, then there is a problem. 

Without a clear intent requirement, the individual will not realize when they are crossing the line. That is not fair, it is not effective. If people do not know that something is wrong, they will not 
25 

be deterred from doing it. And that is the whole purpose of creating 

the criminal law in the first place. 

Now, you have heard from Professor Baker, and in both of our 

written testimonies you have had many examples of the problems. 

I am now going to offer a suggestion for how to fix it in four simple 

steps. 

First, it is time to enact a default mens rea statute. I agree with 

Professor Baker that that is essential, a law that will establish a 

baseline intent for all elements of all offenses in which the state 

of mind is not spelled out in the statute. This should apply to all 

existing statutes and regulations, and certainly to all future laws. 

If there are to be any exceptions, they should be rare, specific, and 

absolutely necessary. 

Two, and I know, Chairman Sensenbrenner, we will probably 

have some additional discussion about this, but we believe that the 

default mens rea should be willful conduct, which means, as it has 

been defined by the courts, a person must act with the knowledge 

that the conduct was unlawful. That is far from the highest standard of intent, but it is better than knowingly, which is vague and 

does not require proof of a bad purpose, and is subject to judicial 

tinkering. 

The public should not be left to the vicissitudes of different 

judges in different circuits to fashion instructions to save a statute. 

A person should not have to wait until the jury is instructed at the 

end of a prosecution to find out what state of mind made the act 

criminal. 

Third, recognizing that there are some who believe that strict liability has a place in the criminal law, it should be limited to situations in which Congress has explicitly considered the ramifications 

and expressly opted for strict liability. Now, NACDL does not favor 

strict liability in the criminal law. We are just against it. We think 

it is wrong. We recognize there is a place for civil strict liability. 

But if you are going to do it, you should do it with precision. 

Fourth and finally, and you have heard this before, and I will say 

it again, there should be sequential referral to the Judiciary Committee before any new criminal provision is enacted. Crimes should 

be reviewed by a Committee with the proper expertise to evaluate 

how those crimes are defined. We understand the challenges with 

this. But at a minimum, it seems to me this Committee could assign a Member to every bill that may be enacted to comb through 

it for criminal provisions and make sure that the intent requirements are clear and understandable. 

I submit that these four steps will markedly improve how you 

make the law, and justice and fairness will be served. You know, 

we have come a very long way over these last few years on this 

issue. We have maintained a magnificent bipartisan cohesion on 

this issue. And I submit now it is time to act. Thank you. 

[The prepared statement of Mr. Reimer follows:] 
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Mr. SENSENBRENNER. Thank you, Mr. Reimer. 

The Chair is going to withhold his questions to see how we go 

meeting up with the votes that will be called on the floor. So I will 

wait until the end. And I am also going to put all the Members on 

notice that so that everybody can have a chance, the 5-minute rule 

will be strictly enforced. To begin, the Chair will recognize the 

Chairman of the full Committee, Mr. Goodlatte of Virginia. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. I very much 

appreciate you holding this hearing. And I want to thank both the 

witnesses for an excellent presentation and a good prescription for 

how this Committee should consider proceeding. 

I noted in my opening statement, which is now enshrined in the 

record for all to memorialize, that the Supreme Court has stated 

that mens rea means the concurrence of an evil-meaning mind with 

an evil-doing hand. And that I think is something that we ought 

to strive to get to in as many circumstances as possible. 

So, Mr. Reimer, you have already answered this question, and, 

Dr. Baker, let me ask you, would passing legislation establishing 

a default mens rea rule for all statutes, past and present, that do 

not currently contain one stop the expansion of Federal criminal 

law? 

Mr. BAKER. Would it stop it? It would stop a lot of prosecutions. 

Mr. GOODLATTE. And it would probably stop people from putting 

it in statutes that go into legislation that go to other Committees. 

And, Mr. Reimer, you will be glad to know that we have a very 

concerted effort in this Committee to identify all bills that are moving through the Congress and insist that we assert our jurisdiction 

when it contains a criminal provision, and many other provisions 

that are the jurisdiction of this Committee, but particularly criminal provisions. 

Dr. Baker’s testimony notes that even in cases where a Federal 

statute includes the mens rea provision it may be a very weak one, 

such as knowing. Dr. Baker, do you agree with Mr. Reimer’s prescription that it should always be a willful conduct standard? 

Mr. BAKER. Yes and no. It depends on how you draft a statute. 

I can draft a statute that will accomplish the same purpose using 

a specific intent. I am using state law terms, not Model Penal 

Code, but common law terms. I can do it with either specific intent 

or general intent, say, in a battery statute. 

It is not the mens rea by itself, it is in relationship to the actus 

reus, which includes not only the act, it includes the circumstances 

and the consequences. It is difficult to give a very simple answer 

to what you say. But given the complexity of Federal law and given 

that you are not going to redo and create a Federal Criminal Code, 

I would agree with Mr. Reimer that that as a practical matter is 

the best result. 

Mr. GOODLATTE. Mr. Reimer, both of you discuss in your written 

testimony whether there is a workable one-size-fits-all mens rea requirement that can be applied to the entire Federal code. Would 

you care to expand on that further? 

Mr. REIMER. Yeah. I think that, first of all, any draft legislation 

should have a provision that gives the Congress the option to define the intent in a particular statute how they see fit for that stat-
41 

ute. The default would apply only where the Congress has not done 

that, or it would kick in if it is not in the statute itself. 

So if you felt, for example, that you could define a distinction between knowingly and willfully, for a particular purpose you wanted 

to use knowingly, that would be fine. You could do that. We are 

just simply saying that if it is not there, or if the new law does not 

contain the provision, willfully adds the essential ingredient that 

the person knew that they were doing something that was unlawful. 

And we have a footnote 12 in our testimony which talks about 

some of the key cases. Bryan is an interesting case because that 

is where we get the willful formulation from. And actually the willful formulation, which is the holding in the case, is not as strong 

as what the dissenting justices would have preferred. They would 

have preferred that you knew you were violating the specific statute. 

I point that out only because those dissenting justices who did 

not get their way in that case were quite an interesting mix. It was 

the late Chief Justice Rehnquist, Justice Scalia, and Justice Ginsburg. But what the court gave us was at least that in a willful act 

you have to show that the person was violating a law. 

Mr. GOODLATTE. Let me in my short remaining time ask Dr. 

Baker if he wants to add or dispute anything that Mr. Reimer just 

said. 

Mr. BAKER. The difficulty with knowing, if you go back to the 

common law crimes like receipt of stolen goods, the reason why the 

intent on the act of receipt is insufficient is simply receiving goods 

that happened to be stolen should not be wrongful because you 

might not know it. Therefore, knowing was added as an additional 

element to the basic general intent. 

The difficulty in Federal criminal law and in the Model Penal 

Code is the ambiguity about the word ‘‘knowing.’’ And knowing can 

be, as it should be in state law, the equivalent of general intent. 

And general intent really refers to the intent to do the act. So if 

knowing means the intent to do the act, the difficulty is, if the act 

is not always itself wrong, the fact that you knew you were doing 

the act proves nothing. If you do not have—— 

Mr. GOODLATTE. So you agree with Mr. Reimer. 

Mr. BAKER. I do. 

Mr. GOODLATTE. My time has expired. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time really is expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. And just following up on that, just writing a ‘‘knowing’’ into each section does not resolve that ambiguity. 

Mr. BAKER. Not at all. 

Mr. SCOTT. So how do we resolve—— 

Mr. BAKER. Because I know I came here this morning. So what 

does that tell me? All it means is that I was conscious of what I 

was doing. 

Mr. SCOTT. Well, so how do we write statutes to solve the ambiguity? 

Mr. BAKER. Very carefully. Legislative drafting is a difficult process. 
42 

Mr. SCOTT. Is intentional or reckless ignorance of the law an excuse? You did not know it was wrong because you did not try to 

find out it was wrong? 

Mr. BAKER. There is a general principle that you have to know 

the law. But that principle derives from the common law where we 

had a few crimes that were basically called the Ten Commandment 

crimes, and people knew that murder, rape, robbery was wrong. 

They did not need a statute. 

Today, when you have statutes that are malum prohibitum, and 

nobody would know what they are, you have to have a stronger 

mens rea. And that is why Mr. Reimer is urging the willfulness, because if you have willful then it makes it easier to hold a person 

liable because they actually knew that the act was wrong. 

Mr. SCOTT. And so what happens when, with all the regulations 

and everything else, you did not know that it was illegal? 

Mr. BAKER. Well, there is a duty on the part of the government 

to promulgate laws, and we do this in different ways. I mean at 

the state level if you rent a car and you drive it out of the airport 

there is usually a sign that says buckle your seatbelt, it is against 

the law. If you are in the securities industry, before you are going 

to work in that industry you are going to go through training that 

gives you a background in what is and is not required. 

Mr. SCOTT. But do you have to prove that the defendant actually 

knew the law? 

Mr. BAKER. Not as a general principle you don’t. The difficulty 

is where there is good faith ignorance and the mens rea is not adequate. If you have a strong mens rea, like willful, then it is much 

more likely that the defendant will not be guilty of willful misconduct if they did not know what the law was. 

Mr. SCOTT. Many of these problems occur because we allow a 

criminal prosecution for what is a regulatory violation, and essentially the regulators write the conduct, and that becomes the crime. 

Some of those really need to be criminal, some not. How do we decide which should be criminal and which should not? 

Mr. BAKER. Well, the difficulty is that when Congress passes 

what is deemed to be a regulatory offense, somebody seems to 

throw in a criminal penalty. I use the TREAD Act a lot, which 

after—— 

Mr. SCOTT. The which? 

Mr. BAKER. The TREAD Act. After the Ford Firestone fiasco, 

Congress—it was sponsored by Senator McCain and Representative 

Billy Tauzin. And it was to deal with product liability. But at the 

end they put on a criminal penalty, which was not used for several 

years. And what happens is things that start out as regulatory and 

the Justice Department does not criminalize them at first, after a 

while somebody says, well, why don’t we criminalize things? And 

that is what happened basically with environmental enforcement 

under the Clinton administration in the 1990’s. 

Mr. SCOTT. There are some that need to be—you know, health 

and safety violations, where people are violating the regulations 

and endangering people, shouldn’t they be criminal? 

Mr. BAKER. You could distinguish between what is a violation 

and what is a true crime. The difficulty of a true crime is that 

when a person is convicted there is a stigma that goes along with 
43 

it. You could have a process, whether you want to call it criminal 

or noncriminal, where it is understood that the result is an offense 

that is not truly a criminal conviction. 

Mr. SCOTT. Well, some you want to be criminal. I mean, if there 

are serious health and safety violations and you have some people 

violating those statutes, maybe you want it to be criminal. 

Mr. BAKER. You may, but that is where you also have the mens 

rea. And one of the mentus rea that you could have would be recklessness. If people do something where they do not intend to do the 

wrong, but they are so careless that it rises to the level of recklessness, recklessness is a mens rea. Mr. SCOTT. Mr. Reimer, when would you need strict liability? 

What kinds of cases would you want strict liability? 

Mr. REIMER. Well, as I said, we do not think the criminal law 

should have strict liability offenses in it. First of all, the so-called 

public welfare exception, which was recognized in the Morissette 

case, in what, 1951, 1952, was a very different world. Very minor 

crimes did not carry the unbelievable, life-altering collateral consequences that people are scarred with nowadays. So, we do not 

think that they should be there. Certainly Congress could say in 

a certain situation, yes, we need it. And all we are saying then is 

be explicit that that is what you want. 

I would like to, if I may, just to pick up on the question that you 

asked Professor Baker about these regulatory offenses and how 

strict liability actually operates. I know that everybody on this 

Committee, I am pretty sure everybody on this Task Force, is familiar with the Bobby Unser case. Bobby Unser testified at one of 

the hearings. So I just went back, because we have talked about 

that as a sort of a good example of an abuse, and if you look at 

the statute and the reg that made that a Federal crime, you really 

see what the problem is. 

The statute, which is 16 U.S.C. 551, basically is a general provision that gives the Secretary of Agriculture the authority to make 

provisions for the protection of the national forest and to issue 

rules and regulations that carry a criminal penalty. That is the 

statute. That is it. And then the regulation does not say anything 

about it being a crime. It just says the following are prohibited at 

the national forest wilderness. And one of those is operating a 

motor vehicle without Federal authority. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentleman from North Carolina, Mr. Holding. 

Mr. HOLDING. Thank you. 

I want to follow up on the line of questioning that my friend Mr. 

Scott has started regarding strict liability, and turn to you, Dr. 

Baker. In the orbit of Federal crimes there must be some that 

should be strict liability. And what would you say that they are? 

Mr. BAKER. I, too, am against strict liability. I think, first of all, 

we need to define what crime is. You could have offenses that are 

not true crimes that are strict liability. Part of the problem is confusing things and calling things crimes that are not crimes. So if 

I run a stop sign, that is strict liability even if I did not see the 

stop sign. But that is not a crime. It is an offense. 

And we could solve a lot of the problem by making that distinction. And you could punish it in various ways. But you do not call 
44 

it a crime, it does not carry the stigma, and people do not go to 

jail for it. 

Mr. HOLDING. So that is the distinction between an offense and 

a crime, is whether you go to jail for it or not? 

Mr. BAKER. Well, that is a long discussion. There are various historical definitions of what a crime is. The one that we are focusing 

on here is the element of actus reus and mens rea as being the 

common law definition of crime. As Justice Jackson says, it marks 

a mature legal system. Many countries in the world, especially in 

Asia, do not have mens rea. They just punish based on a bad act, 

even if it was a mistake. We are a mature legal system. 

Mr. HOLDING. What about areas of the law, you know, we have 

talked a lot about migratory birds and so forth. 

Mr. BAKER. That is a good one. No, I want to talk about that one. 

Mr. HOLDING. All right. All right. I will give you a minute do 

that. 

Mr. BAKER. How about that U.S. aircraft that Captain 

Sullenberger landed on the Hudson? He violated the Migratory 

Bird Act. He killed those birds. Now, nobody is going to prosecute 

him. But why isn’t it that the Department of Interior’s, what, the 

Wildlife Division, why have they not issued clear regulations to distinguish the guilty from the nonguilty? They have not. And they do 

not want to because they want the discretion to prosecute when 

they want to prosecute. And so are they going to prosecute bad oil 

companies but not prosecute good wind farms? 

Mr. HOLDING. That is good. In some of the areas of strict liability 

I think you run into a situation where you were talking about the 

stockbroker who has had to go through all of the training to get 

the various series of licenses and so forth. So any violation of that 

becomes a strict liability because it is just assumed, presumed that 

they know the law. 

Mr. BAKER. They have been given notice, they have been given 

notice. 

Mr. HOLDING. Right. So is that a strict liability that you 

would—— 

Mr. BAKER. Well, they have got the notice, but still the question 

in that context, it might well amount de facto to recklessness. They 

have had the knowledge, they have taken an action. You still have 

the problem of mens rea. And it is still possible that you might end 

up convicting someone where there was no mens rea. But there is 

a high presumption that they have been trained, they ought to understand what is going on, and it is in all likelihood that they were 

reckless. 

But still we are dealing with a regulation. The question is whether for a violation of a regulation you want to put it at the same 

high level of a felony. Do you want to make that level of stigma? 

Mr. HOLDING. In the whole realm of Federal criminal law, you 

know, are there particular areas which are uniquely suited to Federal investigation and prosecution? 

Mr. BAKER. Yes. In fact, you know, I speak a lot on over-federalization. And when I am debating a former assistant U.S. Attorney they always say, well, we only focus on four areas mainly— 

drugs, corruption, immigration, and gun laws. Well, certainly on 

immigration and drugs there is no question the Federal Govern-
45 

ment has the authority. When it comes to public corruption, that 

is a different matter because there is a real question about the authority. When it comes to the gun laws, likewise. 

But there are other areas that the Federal Government is not 

really devoting its resources. You know, after 9/11 Mueller said the 

FBI has got to get back to what it does best. The Federal Government has a lot it needs to do that the states cannot do. 

I had my identity stolen recently. Okay. So I called and tried to 

get through to the FBI. One, I couldn’t get through. But when they 

sent me to—I think it was the SEC or the Federal Trade Commission—they said call your local police. I said, wait a minute, my 

local police have no ability to deal with this issue. It seems like 

everybody’s dealing with somebody else’s issue. We need Federal 

law enforcement in the Internet issues, anything that is crossing 

state lines. No state is able to deal with these things. There is 

plenty for the Federal Government to do. The problem is much of 

what they are doing belongs to the state. 

Mr. HOLDING. Thank you. 

Mr. SENSENBRENNER. The gentleman from Michigan, Mr. Conyers, the Ranking Member of the full Committee. 

Mr. CONYERS. Thank you. 

I am trying to keep this down at a realistic as possible level. And 

I wanted to ask you, as the leader of many of the defense lawyers, 

Mr. Reimer, how does the mens rea problem relate to prosecutorial 

discretion when you have minority defendants in the criminal justice system that might be subject to discretion by the prosecutor 

that may or may not be fair to the defendant himself or herself? 

Mr. REIMER. Well, it is a very timely question since we just 2 

days ago released a report on disparity, which was done jointly 

with a number of groups, including the American Prosecutors Association. And so that is a problem in our criminal justice system in 

general. 

But this issue of prosecutorial discretion, you mentioned the migratory bird case, and of course that is the classic example of trusting prosecutors to not push the envelope out of what the law was 

intended for. And of course there they pushed it ridiculously, and 

people were humiliated and spent a fortune, had their reputations 

damaged, ultimately were exonerated. 

The problem with all of this is that nobody can afford to go to 

trial in this country anymore. Trials are essentially gone. So once 

you are charged you are in a terrible, terrible spot. The cost, the 

potential extreme trial penalty if you take the case to trial, it has 

tipped the balance to such an extent that the only way you have 

any protection is if you build into the law some clear aspect of intent. 

And I want to talk about that just in terms of these questions 

about strict liability because we all know what we are thinking 

about. We want to make sure that the public is safe. The question 

I have is this. If there genuinely is no knowledge, no recklessness, 

no negligence, nothing, the person just received, for example, in the 

case of food, if you receive food that has adulterated products in it 

and you put it on the shelf, you really have no knowledge of that. 

It happened somewhere else. But you could be prosecuted under 

the laws. 
46 

And that is not really right. You have to save the criminal law 

for people who are knowingly doing something that is wrong. And 

if you do not do that, then it loses its value. It certainly does not, 

as I said in my statement, it does not deter anything. It does, if 

it is a corporate situation, the prospect of severe penalties, economic penalties will deter. 

Mr. CONYERS. Well, you make me remember that in many criminal courts the defense lawyer may say to his client, look, you can 

take a plea, or look, if we go to trial they have already indicated 

they are going to throw the book at you. And that is why your 

statement about once you get into the trial you are in big trouble, 

whether you know it or not. And I would like to ask Dr. Baker to 

add to this discussion. 

Mr. BAKER. I am happy to. I would like to distinguish that it is 

easier to endure a state trial, because unlike a few highly publicized ones that have gone a long time, you can afford to defend 

most state trials. And there is going to be a public defender there. 

What you really cannot afford is to defend a Federal trial. I 

mean, you are talking hundreds of thousands and into the millions 

of dollars. Skilling, who took his case to the Supreme Court, got 

there because he had a $42 million bankroll to get there. It was 

an insurance policy. Ollie North, to get his case reversed, he spent 

$40 million. The numbers are just mind-boggling. 

Mr. CONYERS. Well, mens rea is an issue that surrounds this discussion of really the fairness of trials. And, Mr. Chairman, I think 

that that kind of leads us into another very important area. 

Mr. SENSENBRENNER. I thank you. 

The gentleman’s time has expired. The gentleman from Alabama, 

Mr. Bachus. 

Mr. BACHUS. Thank you. I think one of the problems here is that 

I think most Members of Congress do not know the difference in 

civil and criminal. I mean they have no understanding there is a 

difference. I mean, we have thrown around the term strict liability 

and negligence. Well, those are civil. I mean, unless you are maybe 

a manslaughter case. 

But, you know, so many of these statutes, and Dr. Reimer, you 

mentioned Dodd-Frank, where you disclose that there is a systemic 

risk determination, you know, not only does there not have to be 

any intent, but you do not even have to know about that there has 

been one. You do not even have to have notice that you are disclosing something. You do not even have to know that it even exists. 

But that also, that statute also would appear to violate freedom 

of speech because you could say that a company was collapsing. 

Mr. REIMER. Well, the provision, that is a very interesting one, 

because that one, it is called reckless disclosure of systematic risk, 

and it does have a reckless provision to it. The problem with that 

statute is it does not define exactly what it is—what disclosure was 

prohibited. It does not require that the disclosure was done knowingly. And you do not even have to know precisely what it is you 

are disclosing. So if you are properly communicating to somebody 

about this risk and someone else overhears it, have you recklessly 

disclosed the systematic risk? 
47 

But the thing about that statute which is so—you know, I talked 

about the situation with Unser, when you look at what the statute 

was you see what the problem is. Here is another example. This 

was a financial reform bill. And, you know, this was buried in 

there. And I do not think that if anyone had really thought about 

that—I understand what they are trying to get at. We do not want 

people disclosing information that can affect the markets. But you 

have got to be a little bit fairer to the people who are going to be 

subject to these prosecutions. 

Mr. BACHUS. Yeah. But, you know, you would actually had—if 

you said specific intent, that it had been determined a specific intent, but you do not even have to know there is a statute. 

Mr. REIMER. If it were willful, it would be a much different story, 

because then the person would be doing it with the intention to violate the law. 

Mr. BACHUS. You know, prosecutorial discretion, you know, a lot 

of this prosecutors, in my opinion, should not even bring the case 

and then judges ought to throw the cases out. 

Mr. REIMER. Well—— 

Mr. BACHUS. Why aren’t they doing that? 

Mr. REIMER. Well, I am not going to speak to why judges do not 

throw cases out. We probably have some judges here who could— 

former judges who could speak to that, but I will say this, okay, 

as I said, look, prosecutors do not have a difficult time getting convictions in Federal court. That is just a fact of life. But the other 

thing to remember is this: it should not be easy to convict somebody of a crime. It should be a difficult chore. It should be required 

to prove that they deserve to be punished. It is not asking for too 

much. 

Mr. BACHUS. And punished criminally. 

Mr. REIMER. And punished—if it is going to be criminal, yes. 

Mr. BACHUS. Because, I mean, I think, you know, you are talking 

about fines and talking about traffic offenses. 

Mr. REIMER. There are a lot of things we can do to deter conduct 

and to make people pay a penalty to be more vigilant, but if you 

want to brand somebody with what in this country has really become a permanent disability, and that is an issue that I hope 

maybe the Committee will take up as well, the whole problem of 

collateral consequences is just out of control, but if we are going 

to do that, it is not unreasonable to do it with precision and make 

prosecutors come into a court and prove it beyond a reasonable 

doubt. 

Mr. BACHUS. Well—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. BACHUS. Let me just ask about lenity, just—— 

Mr. REIMER. I am sorry? 

Mr. BACHUS. Could len-—I think it is—— 

Mr. REIMER. The rule of lenity. 

Mr. BACHUS. Lenity. These ambiguous statutes, you are supposed to construe them in the defendant’s favor. 

Mr. BAKER. Well, first of all, I do not favor the use of the term 

‘‘lenity.’’ The original term is strict construction. And as Chief Justice Marshall explained in the Wiltberger case, the reason why 

courts should strictly construe statutes is because it is the obliga-
48 

tion of the Congress to write them clearly. What has happened is 

we have gone to the rule of lenity, and the Court has in many cases 

actually flipped it, and it is not lenity at all. 

Mr. SENSENBRENNER. Okay. The gentleman’s time now has expired. We are having blinking red lights here. The gentleman from 

New York, Mr. Nadler. 

Mr. BACHUS. That is a traffic offense. 

Mr. NADLER. Thank you. I thought I was going to have—I was 

not able to think up enough questions, but listening to you, I now 

have too many. I will try to get them in. 

Mr. BAKER. I must not have been clear. 

Mr. NADLER. When you said the Federal criminal court—the Federal criminal law is not coherent, and I understand what you 

meant by that, and I am thinking about it, it is obviously true. Do 

you think we should have a commission maybe or something and 

to try to rewrite the entire—the Federal criminal law, have a recodification of it to make it coherent and up-to-date? 

Mr. BAKER. Well, actually I was on the Senate Judiciary Committee staff at the time that was attempted in the early 1980’s, and 

a lot of people threw up their hands. The difficulty with a criminal 

code the way it was drafted, it assumed that there was a general 

police power in the Federal Government. 

Mr. NADLER. Well, without that assumption, could we draft a 

somewhat different criminal code? 

Mr. BAKER. I would hope, but it would not be an easy task, but 

I know Mr. Sensenbrenner has taken a stab at it. 

Mr. NADLER. Thank you. And the second thing, Mr. Reimer, you 

said that, which is also obviously true, you cannot get a trial today 

because it costs you $40 million, or it is prohibitive. No one goes 

to trial, and therefore the prosecutor has the total, total leverage 

in any plea bargain arrangement because you have to take a plea, 

because unless you are a millionaire you cannot go to trial. That 

is essentially what you said? 

Mr. REIMER. Well, that was Professor Baker who said that. 

And—— 

Mr. NADLER. Okay. 

Mr. REIMER. And I would just—I would make this point. I 

think—well, why don’t you complete your question and—— 

Mr. NADLER. My question is shouldn’t we then try to do something about that? In other words, have the Federal Government 

pay for—— 

Mr. REIMER. Well—— 

Mr. NADLER [continuing]. Defense, not just if you are a pauper, 

but a middle class person who cannot afford it, or award total costs 

to some—total costs from the government if you are acquitted or 

whatever? 

Mr. REIMER. Well, I represent what I like to call as the poor person’s bar association. Most criminal lawyers in this country are 

small and solo practitioners. And while I appreciate the examples 

of Skilling and Colonel North and others like that, the fact is that 

most people cannot afford that kind of a defense and most people 

do not get that kind of a defense. We do have, hopefully if we can 

solve some of the problems that are lurking with respect to funding 
49 

the Federal indigent defense, to put a plug in for that, we have had 

up till now a very good Federal indigent defense system. 

Mr. NADLER. Do you think it is possible for a middle class person 

who thinks he is innocent to actually go to trial? 

Mr. REIMER. No. And it is not just—it is partly money, but it is 

much more than that, Representative Nadler. It is, in fact, the trial 

penalty. We have created a situation in this country where prosecutors are holding all of the cards, all of the discretion, and they routinely make people pay an extraordinary price for the simple act 

of going to trial. 

Mr. NADLER. Is that because of mandatory minimums or something else? 

Mr. REIMER. It is a combination of mandatory minimums, complete control over the charging function. And it is also a function 

of the difficulty of defending oneself with these kinds of vague 

laws, and judges who, quite frankly, and this is one of the big problems with knowingly, is when there is a vagary, it is the judges 

who then decide to bring in doctrines like willful blindness or conscious avoidance, and so all of these things are stacked up against 

you. And, frankly, it is because people cannot go to trial, because 

the cost economically and the cost in terms of lost years of their 

life is so extraordinary, that prosecutors are emboldened to bring 

charges. And you see this all the time. You see it certainly on the 

corporate side, you see that. The threat of a criminal prosecution 

is so Draconian, that you get these plea arrangements—— 

Mr. NADLER. Okay. Now, let me—— 

Mr. REIMER [continuing]. Deferrals and things like that. 

Mr. NADLER. That gives us a wide range of problems to deal 

with. Let me sort of go to the other side. 

Professor, you said that we should not have crimes from regulations, I think. And you also said that corporate—you really should 

not prosecute corporations, you can deter them by huge—excuse 

me. Let me rephrase that. You said that you can deter misconduct, 

corporate, large scale misconduct by fines. 

Now, isn’t it the case that large corporations can just regard even 

$50 million fines as a cost of doing business, and you really need 

criminal penalties is if you are going to deter if some of these 

cases? 

Mr. BAKER. Well, I do not think I really said much about corporations here, although I have written on the issue. What has 

happened, and you could hold another hearing on this—the Sentencing Commission, which in 1992 decided to impose criminal penalties on organizations. What it thereby did was create the compliance industry, and the Justice Department went to corporations 

and said you might be able to get a lesser penalty if you are indicted and convicted if you go into compliance. And there has been 

a long debate and discussion about what the Department of Justice 

was doing on so-called white-collar crime, and people focused on 

the corporation, but the reality is that middle management in corporations do not really understand the situation. They think that 

the corporations are going to defend them, when, in fact, at least 

until recently, corporations were throwing their employees under 

the bus under the pressure of these compliance plans and other 

things, and that would take a long discussion. But, again, you can-
50 

not jail a corporation. And if a corporation is really an organized 

crime entity, then you ought to destroy it. That is one thing. But 

the corporations we have destroyed through prosecution—— 

Mr. NADLER. You can prosecute the President. 

Mr. BAKER. Well, the Anderson, Anderson—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. 

Dr. Baker, in your written testimony, you stated that the fundamental principle that ignorance of the law should not excuse the 

crime rests on the assumption that the law is knowable. What 

steps should we take to make sure that the law is knowable. And 

I think it was Mr. Rime—is it Rimer? 

Mr. REIMER. I say Reimer, but I never correct anyone who says 

Rimer. 

Mr. LABRADOR. Reimer. Okay. That is fine. Mr. Reimer. I am 

Labrador, and people say it all sorts of different ways. 

So I think Mr. Reimer said that it does not really deter anything 

to have these laws that are unknowable. Can both of you kind of 

address those issues? 

Mr. BAKER. Well, the framers of the Constitution and the Federalists wrote that if you have too many laws, you do not have the 

rule of law, because nobody can know what the law is. We have got 

at least 4,500 Federal crimes, not counting a lot of the regulatory 

crimes. 

The difficulty we are getting into is that literally everybody is a 

criminal. There is nobody that cannot—over 18 who cannot be indicted for something. And when that happens, then the stigma, the 

legitimate stigma of the criminal law does not attach. You want 

people to believe that being convicted is such a terrible thing that 

they never have would happen to them, but when innocent people 

are convicted, then—and anybody can be convicted, it is like the 

lottery or getting struck by lightning: you just figure, well, I hope 

I do not get struck by lightning. And if that is the situation, you 

do not have the same respect for the law. Too much in the way of 

law can undermine the rule of law. 

Mr. LABRADOR. Okay. Mr. Reimer, can you comment on that a 

little bit? 

Mr. REIMER. It was a judge who famously said you can indict a 

ham sandwich. Well, you should not be able to convict a ham sandwich, and that is really what this is all about. You certainly should 

not be able to convict a baloney sandwich. 

And, you know, it really just comes down to fundamental fairness. If you do not know it is wrong and therefore you are not acting with any intent or even recklessness or even negligence, which 

you could put into a statute, then what do you get in return for 

having criminalized this person? 

Mr. LABRADOR. You know, as a conservative, I—and I do not 

want to introduce politics necessarily, but it always amazes me 

that conservatives talk about how we do not want a strong Federal 

state, you know, we do not want a state control, we do not want 

all these things, but yet as I have watched Congress over the years, 

they continue to give the Federal Government more and more authority to take away people’s rights and liberties. And I think there 
51 

is somehow we need to figure out here in Congress that—and I 

think there is something that maybe both parties can agree to, that 

we have given the Federal Government way too much control over 

people’s lives, property and really the pursuit of happiness when 

you are making so many criminal laws. 

Mr. REIMER. You know, the problem here really, you know, it 

really is not coming from either political party or any philosophy. 

The problem is that when something bad happens, it is really easy 

to say, I will pass a law, I will make it a crime. It looks like it does 

not cost anything. Of course it does, it is just not an actual direct 

cost. It is an indirect cost that comes about over many, many years 

and it just grows and grows and grows. I was appearing actually 

before a conference in Texas where a group of legislators were looking at how many regulatory offenses they had in Texas. And basically what had happened was each interest group had come in and 

said, well, you know, I need a law to protect this, protect that, and 

before you know it, you had, like, 400 laws in just a few sessions. 

So, the problem is that our legislators all over the country have not 

really taken the time to think about the significance of passing a 

criminal provision. 

Mr. LABRADOR. Yeah. I have been thinking about the whole hearing, the maxim I have learned in law school that not every wrongful act has a legal remedy and not every wrongful act should definitely have a criminal penalty attached to it. There are some 

things that we should not do. 

Now, one last question. Have either of you done any studies on 

what crimes should be only at the state level? Is there a report out 

there, anything that maybe would educate us on how we could, not 

just reform the Criminal Code, but just get rid of a bunch of the 

crimes that are in the Criminal Code? 

Mr. BAKER. Well, I think whenever any of us write on this issue, 

it is against that background. The Constitution leaves general police power in the states, because if the Congress has a general police power, then we do not have a government of limited powers. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

votes have been moved up to 10:15. And, you know, the Chair will 

note that he has restrained himself from asking questions, but I 

will not recognize anybody new after the bell rings for votes. 

The gentleman from New York, Mr. Jeffries, is recognized. 

Mr. JEFFRIES. Thank you, Mr. Chairman. 

On the mens rea spectrum from, most severe to most lenient, 

seems that you have got, four possible categories: there is willfulness, then you have got recklessness, then you have got negligence, 

then you have got strict liability. And there appears to be at least 

a growing consensus amongst the witnesses, amongst the distinguished Members of the Task Force that we should be moving toward instances where willfulness or something more severe as it 

relates to mens rea is required in most instances, and that we 

should really limit, if not completely eliminate, strict liability as a 

mens rea requirement. 

I am interested in your observations as to what circumstances 

would it be appropriate, if any, where we have got sort of these in 

between standards enshrined into Federal statute, either a recklessness statute—recklessness or negligence mens rea requirement. 
52 

Mr. BAKER. Well, again, you have got to relate it to the other elements of the statute. Even in the context of negligence, negligence 

de facto can end up being a strict liability and really simply a civil 

tort statute. So obviously where you—let me just take a simple example of burglary. Okay? Where when you enter a house or a 

building without authorization, that is a trespass. How do we distinguish a trespass from a burglary? We add a specific intent, with 

the intent to commit a felony therein, or a theft. Okay. What we 

are doing is out of all the possible intents that a person could have 

when they enter, we want to make sure we only criminalize the 

one that deserves criminality. So suppose somebody trespasses and 

they come into the house because it is raining. They are still guilty 

of a trespass, but it is not really burglary, because they were coming in to get out of the rain. It is still wrong, but trespass is not 

burglary. So by requiring a specific intent, you make sure that you 

have limited, the purpose of a specific intent is to limit the category 

of people and the actions that are deemed to be seriously criminal. 

Mr. JEFFRIES. Okay. Mr. Reimer, in your testimony, you mentioned the recommendation of a default mens rea requirement as 

one of the ways in which to protect the liberties of people against 

the phenomenon of over-criminalization and aggressive prosecutorial discretion exercised in an inappropriate way. 

Do you think it is also appropriate for us to think about building 

affirmative defenses into statutory law in any way, shape or form 

that will hopefully minimize or limit the abuse of prosecutorial discretion or create circumstances where one’s ability to defend themselves at a trial is enhanced? 

Mr. REIMER. That is a very difficult question to answer. It is a 

great question. It is difficult to answer. The problem with affirmative defenses are they are simply that. They are defenses and they 

shift the burden of proof to an accused person. They may be appropriate in certain circumstances. The law recognizes a number of 

them, but I would not recommend that as the solution to inadequate intent. 

And I want to be clear about our proposal for a default statute. 

We are not saying that you should rely on the default in the first 

instance. If you are creating a new statute, Congress should decide 

what is the level of intent that is required under—as Professor 

Baker says, what is the wrong that is involved? Make your judgment. The default would kick in only if Congress has failed to do 

that or it would conceivably apply retrospectively. 

Mr. JEFFRIES. Professor Baker, you mentioned good faith ignorance as sort of a situation that should countenance against possible prosecution of criminal liability. Could you elaborate? 

Mr. BAKER. Well, as Mr. Reimer has said, if you have a willfulness or a strong mens rea, that protects against the problem of ignorance of the law. I know that Congress does not, and nobody 

wants to countenance the notion that ignorance of the law is a defense, but in order to maintain it, it is incumbent upon the Congress to ensure that there is a clear mens rea so that people cannot 

fall into the situation where in good faith they did not know. 

Mr. JEFFRIES. Now, lastly, you mentioned the prosecutorial abuse 

of the mail fraud statute, or the aggressive interpretation. 

Mr. BAKER. I was—— 
53 

Mr. JEFFRIES. Could either of you comment—— 

Mr. BAKER. Sure. I was—— 

Mr. JEFFRIES [continuing]. As to whether we should address that 

specific situation? 

Mr. BAKER. I had the pleasure of meeting the Justice Department on one of their expansions in the Fifth Circuit a few years 

ago. The difficulty is, and I will comment what he would not, when 

there is an indictment, Federal district judges do not want to be 

reversed. I do not care what party appointed them. They do not 

want to be reversed. In a criminal case, the safest way, when the 

defense argues that the government has gone beyond its power, to 

avoid getting reversed is to simply rule against the defendant. 

Then the chances are 95 percent that the defendant is going to 

plead guilty. 

Mr. JEFFRIES. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. The 

gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I know you have given us deference. Yes, it is tough to legislate, but I will submit to you what makes it really tough to legislate is the fact that there are, having been a former judge and chief 

justice, I can tell you that there are judges who are educated far 

beyond their biologically intellectual ability to assimilate information and come out with wisdom, and it creates real problems. So 

it should not be difficult for a legislature to say, you shall do something, and yet we have judges that say, well, now, that term ‘‘shall’’ 

is really ambiguous. Not if you have common sense, but places like 

the Ninth Circuit, that it is not common, it is just sense. But I 

know our Chairman had made a valiant effort at one point to try 

to reorganize the Federal circuit court system, and I still think we 

should have confined the Ninth Circuit to disputes that were arising within their building, but I want to just cut to the chase here. 

You know, a lot of great points have been made, and this is an area 

where there is true bipartisanship, because you do not want innocent people to be hurt by what we do here in Washington. 

I have been hearing and I have read the information last night 

that was being proffered. Is it possible that we could draft a law 

that would be sufficient as one law to require mens rea and intent 

without having to go in and redo 5,000 criminal statutes? Do you 

think we need to go in and actually clean up every law, or could 

we be precise enough that we could affect every law to get the state 

of mind requirement in there? 

Mr. REIMER. I think the proposal that we are suggesting will go 

a long way toward taking care of the existing statutes. I am not 

saying—— 

Mr. GOHMERT. But a long way is not—— 

Mr. REIMER. May not be perfect, Representative Gohmert. I am 

not going to sit here and say, well, it is an absolute perfect fix, but 

I think it would really take care of most of the situations that we 

have been talking about, and then, of course, going forward to 

make sure it does not continue to happen. 

Mr. GOHMERT. And do you a comment, Mr. Baker, on that? 

Mr. BAKER. No. I agree with that. 
54 

Mr. GOHMERT. With regard to the issue of regulations that can 

result in incarceration, do you think if we drafted a sufficiently 

specific law that in effect said no regulation that has not been approved specifically by Congress could require incarceration as part 

of the penalty? That would be adequate to cover some laws where 

we actually leave that much discretion to regulators? 

Mr. REIMER. I have no capacity to say what this would mean for 

your workload, but, yes, I would love to see it if you would require 

that any reg that imposes a criminal penalty has to be approved 

by Congress. However, the Unser example I gave you is the classic 

problem. The statute gives the secretary of that department—— 

Mr. GOHMERT. Right. 

Mr. REIMER [continuing]. The right to make regulations, and 

they are criminal. The regulation itself does not say it is a crime. 

It just says, thou shalt not use a motor vehicle in the forest. 

Mr. GOHMERT. But so you think we could have one law that we 

passed that would take away any ability for, whether it is a secretary or—— 

Mr. REIMER. Yes. 

Mr. GOHMERT [continuing]. A bureaucrat in a tiny cubical to be 

able to pass regulations that carry—— 

Mr. REIMER. The default we are proposing, which would apply to 

all laws and regulations, would mean that in that situation, you 

would have to—because it is silent as to intent, you would have to 

apply what we are suggesting should be a willful standard, which 

means that they would have to—they would have had to have 

proved that Bobby Unser drove that vehicle knowing that he was 

breaking the law. 

Mr. GOHMERT. Okay. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Thank you very much. The only person 

who has not asked questions before the bell rang is the Chair, and 

the Chair is going to impose his rule that we are not going to recognize anybody after the bell rings on himself. 

Are the Members to my right listening to this? 

Mr. GOHMERT. I hear you. 

Mr. SENSENBRENNER. Okay. The gentleman from Virginia has 

some UC requests. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent that an outline from the Criminal Justice Policy Foundation be entered into 

the record. 

Mr. SENSENBRENNER. Without objection, so ordered. 

[The material referred to follows:] 
55 

Prepared Statement of Eric E. Sterling, President, 

The Criminal Justice Policy Foundation 

SUMMARY OF RECOMMENDATIONS TO THE TASK FORCE

(1) Assure that federal crimes are grounded in the text of the Constitution. 

If the enumerated powers are inadequate to the needs of the government to 

carry out its responsibilities, the Constitution should be amended, but the meaning of its words should not be twisted or ignored. 

(2) Review federal crimes to assure that they only punish misconduct that deserves 

the loss of liberty. The moral authority of the government to deprive a citizen of his or her liberty exists only when a citizen’s misconduct is 

wrongful. 

(3) Commission a study of the actual cost to the American economy of overcriminalization and over-punishment. 20 million Americans have a felony 

conviction, and about 65 million have a criminal record. Most companies consider convictions an influential factor in not extending a job offer. Without a 

paycheck there is no car loan, credit card, or home mortgage. Overcriminalization means the economic participation of tens of millions of Americans is severely stunted which hurts almost every company. Thus, as I comment on my 

blog, www.profitsunchained.com, every American investor is hurt by overcriminalization. The American auto industry shrank as America’s prison population mushroomed from 250,000 to 2.3 million, and the number of Americans 

with criminal records rose. Fewer Americans could buy Fords, Chevrolets and 

Dodges, or other goods. 

(4) Review federal crimes to assure that they all have the proper mens rea. 

(5) Study the problem of excessive punishment. Wasted punishment is extremely 

expensive and fails to deter crime effectively, as well as being manifestly unjust. 

For many federal offenses, the sentences need to be shorter. 

(6) Enact a mechanism to end sentences upon rehabilitation, such as sealing conviction records 5 or 10 years after sentence completion. The collateral consequences of a conviction should not be a life sentence. 

(7) Scrutinize Justice Department case selection practices and the supervision 

of prosecutors to identify overcriminalization in practice. Congress should stop 

DoJ’s excessive focus on low-level cases revealed by U.S. Sentencing Commission 

studies of federal drug cases. 

(8) Revise the quantitative criteria for identifying high-level drug traffickers in the Anti-Drug Abuse Act of 1986. The current triggers were a hastily 

drafted mistake. 

PREPARED STATEMENT

Chairman Sensenbrenner, Representative Scott, and Members of the task force: 

I congratulate you for convening this task force to discuss the serious problems 

of overcriminalization of behavior and the over-federalization of crime. 

As assistant counsel to the House Committee on the Judiciary from 1979 to 1989, 

I began my career in Washington working on the Criminal Code Revision Act in the 

96th Congress (H.R. 6915, 96th Cong. 2d Sess.). I have spent over thirty years of 

my legal career thinking about these problems and the appropriate scope of 

Congress’s power to punish under Article I, Section 8 of the Constitution. 

In the 97th through the 100th Congresses, on the staff of the Subcommittee on 

Crime under Chairman William J. Hughes (D-NJ), I was the attorney principally 

responsible for federal drug laws, gun control, pornography, organized crime, money 

laundering and other matters. My career on the Hill is best known for my role assisting the Crime Subcommittee develop the mandatory minimum drug sentences in 

August 1986 as part of the Anti-Drug Abuse Act of 1986 (P.L. 99—570, Sections 

1002 and 1302). 

In addition, over the past three decades I have taught courses in crime and criminal justice at American University and George Washington University, and lectured 

to academic, professional and civic audiences all over the country. I have served as 

President of the Criminal Justice Policy Foundation since 1989, working on projects 

to improve the nation’s criminal justice system. 

As you begin the work of this task force, I have the following eight recommendations: 
56 

First, the task force (or its successors) should undertake a review of all federal 

crimes to assure that they are grounded in the text of the Constitution and the 

scope of Congress’s power to punish conduct. The Constitution gives limited powers 

to Congress in Article I, Section, 8, especially in the area of criminal law. If those 

enumerated powers do not provide the authority for the proposed crime, there is a 

strong argument that it should not be a federal crime at all. When misconduct 

threatens society or individuals in a new manner not prohibited by law, then perhaps a new crime is necessary, but it must be grounded on powers of Congress 

found in the text of the Constitution. 

When the current federal law is inadequate to address the crime and to protect 

public safety, but there is no authority in the Constitution for Congress to act, then 

instead of twisting the meaning of the terms in the Constitution, the Constitution 

should be amended. The Constitution is in writing in order to preserve its meaning 

at the time its provisions were written. 

Over the past 80 years, Congress has grounded many criminal laws, including, 

for example, the Controlled Substances Act, on the power in Article I, section 8, 

‘‘to regulate Commerce with foreign Nations, and among the several States, 

and with the Indian Tribes.’’ 

When the Constitution was written and ratified, commerce simply meant trade. 

It was not a synonym for all economic activity or for the use of money. Unfortunately, for many decades Congress has relied on a meaning of the term ‘‘Commerce’’ 

that is far more broad than when the Constitution was written, and uses that broad 

reading of its commerce power to regulate a great deal of activity of the American 

people. 

A way to understand the absurdity of this broad reading is to consider the many 

varieties of conduct that take place primarily within a state that are now being regulated by Congress as affecting interstate or foreign ‘‘Commerce,’’ and imagine Congress claiming the power to regulate that conduct when it takes place in every ‘‘foreign Nation’’ because it affects ‘‘Commerce.’’ The doctrine that marijuana use which 

takes place wholly in California is subject to federal regulation because it affects 

‘‘Commerce’’ (asserted by the U.S. Supreme Court in Gonzales v. Raich 545 U.S. 1 

(2005)) logically means that, under that clause of the Constitution, Congress also 

has the power to prohibit the use of marijuana within European states because the 

market for drugs there also affects the price and supply of drugs in the United 

States. There is nothing in the broad interpretation of the ‘‘Commerce’’ power that 

has extended federal power to purely intrastate activity that limits that power when 

that kind of activity takes place within a foreign nation. (Surely the distinction can’t 

rely on the difference between ‘‘regulating Commerce with’’ and ‘‘regulating Commerce among.’’) If the nation needs Congress to regulate the economy, then the nation should revise the Constitution to provide Congress with such power. If the nation needs the federal government to prosecute use and sale of drugs that takes 

place wholly within a state, the nation should amend the Constitution to do so. 

‘‘Overcriminalization’’ endangers liberty and undermines the federal system and the 

powers of the states when Congress declares conduct to be criminal when it has no 

power to do so in the Constitution. 

Second, the task force (or its successors) should review federal crimes to assure 

that the law only punishes misconduct that deserves the loss of liberty. The moral 

authority of the government to deprive a citizen of his or her liberty for 

violating a law exists only when a citizen’s misconduct is wrongful. Conduct 

is only wrongful when it hurts someone else—e.g., it is an assault, a theft, or the 

abridgement of a right—or is the failure to carry out an important duty, such as 

paying taxes. The authority to punish is not triggered because the conduct is simply 

immoral or offensive (even if in the view of a majority of the population). Conduct 

such as adultery, breach of contract, lying, cheating at cards or other games, plagiarism, etc. are wrong or immoral, but they are not wrongful in the narrow sense that 

those who do so deserve punishment by the government and the deprivation of the 

liberty of the offender. (I suggest you consider the analyses on these points of Douglas Husak, Professor of Philosophy and Law, Rutgers University in his book, Overcriminalization: The Limits of the Criminal Law (Oxford University Press, 2008)). 

Third, the task force (or it successors) should commission a study of the economic cost to the society of over-criminalization and over-punishment. One 

team of sociologists has estimated that 20 million Americans have a felony convic-
57 

1Sarah Shannon, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael 

Massoglia, GROWTH INTHE U.S.EX-FELON AND EX-PRISONER POPULATION, 1948 

TO2010, Population Association of America, Washington DC, 2011. 2Michele Natividad Rodriguez and Maurice Emsellem, 65 Million ‘‘Need Not Apply’’: The Case 

for Reforming Criminal Background Checks for Employment, National Employment Law 

Project, March 2011. http://www.nelp.org/page/-/65lMillionlNeedlNotlApply.pdf?nocdn=1. 3 John Schmitt and Kris Warner, Ex-Offenders and the Labor Market, Center for Economic 

and Policy Research, November 2010. http://www.cepr.net/documents/publications/ex-offenders2010-11.pdf. 4Society for Human Resource Management, Background Checking—Conducting Criminal 

Background Checks SHRM Poll, January 22, 2010. http://www.shrm.org/Research/ 

SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx. 5 Bruce Western and Becky Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility, Pew Charitable Trusts, 2010. 

tion.1 Another study estimates that 65 million Americans have a criminal record.2

These criminal records result in unemployment and underemployment, and devastate the earning capacity of an enormous fraction of the population. Because our 

economy is strongly consumer driven, that 20 million Americans cannot fully participate in the legitimate economy diminishes the sales and profits of a majority of 

American businesses.3 No other nation punishes its people so extensively, and I suggest no other economy is paying such a high price for over-criminalization. 

A January 2010 survey by the Society for Human Resource Management found 

that more than three-quarters of American companies consider a felony or misdemeanor conviction (even non-violent misdemeanors) an influential factor in not 

extending a job offer to an applicant.4 This practice is self-defeating. When most 

companies won’t hire tens of millions of Americans who would otherwise be qualified 

for a job, tens of millions of Americans can’t get a paycheck. With no paycheck, tens 

of millions of Americans can’t get a car loan, credit card, or home mortgage. 

As I comment on my blog, www.profitsunchained.com, every American investor is 

being hurt by over-criminalization. Simply think about the consequences for the 

American auto industry as the size of the prison population steadily has grown from 

250,000 to 2.3 million over 40 years. Now there are two million more Americans 

who are no longer in the market for a Ford, Chevrolet or Dodge than there were 

in the 1960s and 1970s. 

The problem for the American economy is much larger. With tens of millions of 

felons and misdemeanants unable to find employment that pays them what they 

could earn but for ‘‘overcriminalization,’’ their reduced income means there is reduced consumption of almost every good and service produced in America. A comprehensive Pew study found that ex-offender earnings are significantly reduced: 

Subsequent wages are approximately 11% lower, annual earnings are approximately 

40% lower, and the total number of weeks worked is almost 20% fewer.5 An ex-offender who cannot obtain a credit card can’t buy from Amazon.com nor order tickets 

to a basketball game from Ticketmaster. Across the board, every American business 

suffers from reduced sales, and thus every American investor obtains a smaller return on investment. The entire American GDP is stunted. 

No doubt you have heard the attack upon the private prison industry. A business 

whose growth model depends upon a continued increase in a supply of prisoners is 

dubious investment on many grounds. But whatever profits it makes because of 

overcriminalization are infinitesimal when measured against the losses endured by 

the whole American economy society due to over-punishment. The task force should 

not let a critique of the profits of the private prison industry distract it from the 

big economic picture: all over the country, American workers and investors are 

being hurt because about 65 million persons have criminal records that last a lifetime. These economic costs are doubly unnecessary because these life-long records 

are often the result of youthful misconduct that ought to have been forgiven and 

forgotten within a few years. 

Fourth, the task force (or its successors) should review federal crimes to 

assure that all crimes have proper mens rea. Intrinsic in the problem of overcriminalization has been the failure of Congress (and state legislatures) to require 

the traditional element of criminal culpability be proven in all cases. 

One possibility might be to enact a general rule to set forth minimum mens rea 

requirements to be proven for all federal offenses for which mens rea has not been 

specified for every element of the offense. Of course, a different degree of mens rea 

might be necessary based the variety of conduct, the variety of circumstances, and 

the variety of consequences that are elements of various offenses. 
58 

6Douglas Husak, Overcriminalization: The Limits of the Criminal Law, Oxford University 

Press, 2008, p. 3. 7FoxNews.com, ‘‘Locked Up for Life,’’ Dec. 4, 2008, http://www.foxnews.com/story/ 

0,2933,461747,00.html. 8Mark A.R. Kleiman, When Brute Force Fails: How to have less crime and less punishment, 

Princeton University Press, 2010. 9 Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues 

and Options, Congressional Research Service, R42937, Jan. 22, 2013, p.2. 10 U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, 

May 2007, Figure 2–7, p. 22. 11 U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, 

May 2007, Figure 2–4, p. 19. 12 H.Rept. 99–845, Part 1, to accompany H.R. 5394, Narcotics Penalties and Enforcement Act 

of 1986, enacted in P.L. 99–570, Title I, Subtitle A—Narcotics Penalties and Enforcement Act 

of 1986. (‘‘The Committee strongly believes that the Federal government’s most intense focus 

ought to be on major traffickers, the manufacturers or the heads of organizations, who are responsible for creating and delivering very large quantities of drugs.’’ at pp. 11–12.) 

Fifth, the task force (or its successors) should recognize that an essential element 

of the problem of over-criminalization is that it ‘‘produces too much punishment.’’ 6

This task force should reduce sentences and sentencing guidelines that are longer 

than necessary to meet the purposes of sentencing, and enable ex-offenders—after 

a period that evidences their rehabilitation—to no longer have to identify as ex-offenders. The task force should assure that most ex-offenders do not have a life-long 

record. 

My experience as counsel to the House Judiciary Committee is that Congress sets 

punishments with the most serious criminals in mind to be appropriately punished. 

That makes sense, but the reality is that the overwhelming majority of criminals 

prosecuted by the Justice Department never approach that level. For example, when 

Congress created the mandatory minimum and maximum penalties for drug offenders in 1986, we expected the Justice Department would use these penalties for men 

like Pablo Escobar. Tragically for most federal drug offenders those minimum and 

maximum sentences are unjustly long. A classic example of this kind of wholesale 

miscarriage of justice is the case of former college student Clarence Aaron, who is 

still serving three terms of life imprisonment for a small role in a Mobile, Alabama 

crack conspiracy.7 Punishments should be proportionate to culpability. Efforts to reform disproportionate sentences, such as the mandatory minimum sentences, have 

too often been challenged by exaggerations that any reduction in sentences is an excusing of conduct, even when the maximum sentence would remain 40 years or life. 

Not only are these long sentences unjust, they are ineffective and wastefully expensive. For deterrence to be effective, quick punishment is required, not the threat 

of a potentially long sentence. This requires prison and jail cells be available for the 

large mass of offenders and puts a premium on apprehension, not long expensive 

incarceration. Prison overcrowding undermines the ability of the justice system to 

create effective deterrence.8 Prison overcrowding has made it more expensive to op- erate the federal prisons. The per capita cost has risen from $19,571 in FY 2000 

to $26,074 in FY 2011.9

Sixth, the task force (or its successors) should take action to assure that 

sentences come to an end. In our grammar, every sentence ends with a period. 

But in our criminal justice records, no sentence has a period, it lasts forever. It is 

a tragic instance of ‘‘overcriminalization’’ that every offense now carries what is effectively a life sentence. The Task Force should enact reforms to assure that rehabilitated ex-offenders are not subject to a ‘‘life sentence,’’ and that collateral consequences terminate at some point after a nominal sentence has been served. Because every misdemeanor or felony is now, in effect, a ‘‘life sentence,’’ we have seriously undermined the value and importance of rehabilitation. The task force 

should enact mechanisms that provide that five or ten years after service 

of a sentence is completed, the criminal record is sealed and no longer 

overshadows a record of recovery and rehabilitation. 

Seventh, the task force (or its successors) should engage in searching 

oversight of the case selection practices of the Department of Justice. When 

the federal government prosecutes cases that have no genuine federal nexus, this 

is overcriminalization in a very practical sense. For example, in 2005, over 75% of 

crack offenders and 25% of powder cocaine offenders operated only at the neighborhood and local level, according to the United States Sentencing Commission.10 Over 

50% of offenders in both categories did not even rank above street dealers.11 These 

are drug offenders who are properly punished by state authorities. These numbers 

also tell us that the Justice Department is misusing the statutes and disregarding 

Congressional intent that high level offenders be the focus of federal drug enforcement.12
59 

13 U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, 

May 2007, Table 5–2, p. 108. 14 U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, 

May 2007, Table 5–3, p. 112. 15 U.S. Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics, Table 33. 16 H.Rept. 99–845, Part 1, see Note 11, supra. 17 E.g., 100 g. of heroin, 500 g. of cocaine, 5 g. of cocaine base (‘‘crack’’), 10 g. of PCP (or 100 

g of a mixture containing a detectable amount of PCP, 1 g. of LSD, 40 g. of fentanyl, 100 kg. 

of marihuana. (P.L. 99–570, 100 STAT. 3207–3; 21 U.S.C. 841(b)(1)(B)). 18P.L. 99–570, section 1007(a); 18 U.S.C. 3553(e). 19 U.S. Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics, Table 33. 

http://www.ussc.gov/ResearchlandlStatistics/AnnuallReportslandlSourcebooks/2012/ 

Table33.pdf. 20 Nathan James, The Federal Prison Population Buildup: Overview, Policy Changes, Issues 

and Options, Congressional Research Service, R42937, Jan. 22, 2013. 21Department of Justice FY2014 Budget Request, Press Release, April 10, 2013. http:// 

www.justice.gov/opa/pr/2013/April/13-ag-413.html. 

The average weight of 41 federal crack cocaine cases was 3.1 grams in the District 

of New Hampshire in 2006.13 Unless these offenders were actually murderers or intimidating witnesses, their federal prosecution for these tiny quantities of drugs was 

a waste of the energies of federal agents, the talents of federal prosecutors, the judgment of federal judges and space on precious federal prison beds. In 2006, over onethird of federal crack cases involved less than 25 grams, half the weight of a candy 

bar.14 This is the waste of investigational and prosecutorial energy properly directed 

at international drug lords or criminal gangs that keep cocaine flowing to the crack 

houses. In FY 2012, the largest category of federal drug cases involved marijuana 

(6,992), far exceeding the number of heroin cases (2,192) and crack cocaine cases 

(3,511).15

Eighth, the task force (or its successors) should revise the criteria regarding whom to incarcerate and for how long. Congress wanted the Justice 

Department to focus on high level offenders by enacting the Anti-Drug Abuse Act 

of 1986 16 but Congress selected relatively small quantities to trigger the mandatory 

sentences.17 For decades, everyone has understood that those quantities—selected 

in haste—were a mistake and are too low. These quantities enable prosecutors to 

force low-level offenders to testify against others in an attempt to obtain a departure 

from the mandatory sentence by providing ‘‘substantial assistance.’’ 18 Even those 

sentences are terribly long. More importantly, only a tiny number of high-level traffickers are actually snared. The Justice Department almost never uses the king-pin 

statute, 21 U.S.C. 848, according to the U.S. Sentencing Commission.19

CONCLUSION

The limitations on federal government power in the Constitution mean that the 

federal criminal justice footprint should remain a relatively small part of the nation’s criminal justice system. But the Acts of Congress are powerful examples for 

the legislatures of the 50 states. When Congress enacted mandatory drug sentences, 

many states followed. Similarly, the actions of this task force could have profound 

positive effects across the nation and our criminal justice system. 

Overcriminalization has led to an enormous increase in the federal prison population. According to a 2013 Congressional Research Service Report, the federal prison population has risen almost 800% in 30 years, from 25,000 in 1980 to 219,000 

in 2012.20 Overall, the federal prison system is operating at 39% over capacity. We 

do not need to spend $236 million in FY2014 to build more federal prisons 

on top of $8.5 billion for operations, as the Administration requested; 21 we 

could let thousands of low-level, low-risk offenders out of federal prison. 

The American population under correctional control has grown enormously. If this 

task force helps shrink the population subject to federal punishment, the effect on 

the total punished population may be small, but it could have a large indirect effect 

as state legislatures follow Congress’s example. 

The convening of this task force is one of the most positive developments in criminal justice policy in many years. I commend you for this undertaking. If there is 

any way that the Criminal Justice Policy Foundation can assist your work, do not 

hesitate to contact us. 

Mr. SENSENBRENNER. I would like to thank both of the witnesses 

for their very useful testimony. I will get back to one of you or both 

of you with the hot idea that I have, which might be off the record, 
60 

because the bell has rung, and that might be just as good. So I 

thank everybody for their very useful participation. I think we got 

a lot of the issues out that we need to deal with. And without objection, the Task Force is adjourned. 

[Whereupon, at 10:20 a.m., the Task Force was adjourned.] 

Æ